Montgomery, JR; (2000) Time for a paradigm shift? Medical law in transition. In: Freeman, MDA, (ed.) Current Legal Problems 2000. (363 - 408). Oxford University Press

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Abstract

The dominant approach to medical law in this country has been a highly rational ethical consumerism. It sees medical law as unified around ethical concepts such as respect for autonomy and self-determination, truth-telling, confidentiality, respect for people (including their dignity), and justice. This paper suggests that this approach has fostered a paradigm for the discipline of medical law that now makes it hard to understand and explain the rules of law and outcome of cases involving the work of health professionals. It suggests that a transformation of the paradigm of medical law needs to occur in order to take account of the actual practice of lawmakers and the changing context in which the law operates. Medical law will need to draw more on the acceptance of health care as a public service; on public law rather than private law. In its emerging manifestation, medical law will become geared to generating particular values and standards, consciously aiming to create the sort of morality that we want for our health services. It will seek to make the transition from an ambitious project that has collapsed into protecting professionals at work from outside scrutiny into a force for progress.

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